Bouknight v. KW Associates LLC

OPINION AND ADOPTING REPORT AND
RECOMMENDATIONAND GRANTING MOTION TO
DISMISS

CAMERON MCGOWAN CURRIE Senior United States District Judge

This
matter is before the court on Defendants’ motion to
dismiss Plaintiff’s claims for (1) wrongful termination
in violation of public policy and (2) negligent
misrepresentation. ECF No. 4 (motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6)). Both claims arise out of Plaintiff
Kevin Bouknight’s (“Bouknight’s”)
employment with Defendant KW Associates, LLC
(“Employer”) and statements made to Bouknight by
Defendant Jim Kirkham (“Kirkham”) (collectively
“Defendants”). For the reasons set forth below,
the motion is granted and both claims are dismissed.

BACKGROUND

In
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 (B)(2), D.S.C., this matter was referred to United
States Magistrate Judge Paige J. Gossett for pre-trial
proceedings and a Report and Recommendation
(“Report”). On April 19, 2016, the Magistrate
Judge issued a Report recommending Defendants’ motion
to dismiss be granted in full. ECF No. 19.

The
Magistrate Judge advised the parties of the procedures and
requirements for filing objections to the Report and the
serious consequences if they failed to do so. Bouknight filed
objections on May 6, 2016. ECF No. 27. Defendants filed a
response on May 19, 2016 and Bouknight filed a reply on May
20, 2016. ECF Nos. 29, 32.[1] This matter is now ripe for resolution.

STANDARD

The
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight, and the
responsibility for making a final determination remains with
the court. Mathews v. Weber, 423 U.S. 261 (1976).
The court is charged with making a de novo determination of
any portion of the Report to which a specific objection is
made. The court may accept, reject, or modify, in whole or in
part, the recommendation of the Magistrate Judge, or recommit
the matter to the Magistrate Judge with instructions. 28
U.S.C. § 636(b)(1). In the absence of an objection, the
court reviews only for clear error. See Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005) (stating that “in the absence of a
timely filed objection, a district court need not conduct a
de novo review, but instead must ‘only satisfy itself
that there is no clear error on the face of the record in
order to accept the recommendation.’”) (quoting
Fed.R.Civ.P. 72 advisory committee’s note)).

DISCUSSION

For
reasons explained below, the court adopts both the reasoning
and recommendation of the Report. Defendants’ motion to
dismiss is, therefore, granted and Bouknight’s claims
for wrongful termination in violation of public policy
(“Wrongful Termination”) and negligent
misrepresentation are dismissed. In light of the
parties’ agreement, this ruling applies to the third
(Wrongful Termination) and seventh (Negligent
Misrepresentation) causes of action in the Second Amended
Complaint.[2]

I.
Adequacy of Objections

Defendants
argue Bouknight’s objections are either insufficiently
specific or belatedly raised arguments and, consequently, do
not warrant a de novo review. Bouknight challenges these
arguments on reply, noting, in part, that some of his
objections address arguments Defendants raised for the first
time in their reply in support of the motion to dismiss. The
court need not resolve this dispute as it finds both the
Report’s reasoning and recommendations proper under a
de novo standard of review.

II.
Wrongful Termination in Violation of Public Policy

Bouknight’s
Wrongful Termination claim is based on allegations he was
terminated for hiring an attorney after he filed a
workers’ compensation claim.[3] The Report recommends this
claim be dismissed because it is not based on either of the
two previously recognized bases for a Wrongful Termination
claim (where the employer requires the employee to violate
the law or the termination is, itself, a violation of
criminal law) or any other clear mandate of public policy.
ECF No. 19 at 2-4 (noting extension beyond the two recognized
bases requires “plaintiff . . . to show a clear mandate
of public policy.”). Bouknight argues this
recommendation is in error because South Carolina courts do
not dismiss Wrongful Termination claims based on novel public
policy theories at the pleading stage. ECF No. 27 at 2.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The
court disagrees. Certainly, some South Carolina cases have
denied motions to dismiss Wrongful Termination claims based
on novel public policy theories to allow further development
of the facts. See, e.g., Barron v.
Labor Finders of S.C., 713 S.E.2d 634, 637 (S.C. 2011)
(noting two prior cases &ldquo;declined to address whether
the public policy exception applied because, in their
procedural posture, it was not appropriate to decide the
novel issue without further developing the facts of the
case.&rdquo;). The South Carolina Supreme Court has not,
however, held that its subordinate courts may not address
such issues at the pleading stage. It has, instead, held that
&ldquo;what constitutes public policy is a question of law
for the courts to decide[, ]&rdquo; which suggests the issue
is one which may often, if not always, be resolved at the
pleading stage. Barron, 713 S.E.2d at 637. The South
Carolina Supreme Court also participated in resolution of a
Wrongful Termination claim based on a novel public policy
theory at the motion to dismiss stage by answering a question
certified from the district court. See ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.